Terms & Conditions

In this application for Bridging Finance and the Standard Terms and Conditions, unless the context clearly indicates the contrary, the following words, phrases and expressions shall apply and have the respective meanings assigned thereto hereunder and similar words shall have corresponding meanings.

1.1. DEFINITIONS:

1.1.1. “Applicant” means the party as described in section 1 of the Application Form, as well as the Letter of Undertaking.

1.1.2. “Agreement” means the Master Discounting Agreement Application Form together with these Standard Terms and Conditions, as signed by the Applicant and the Discounting Company.

1.1.3. “Application Form” means the Master Discounting Agreement Application Form as signed by the Applicant.

1.1.4. “Additional Payments” means any further payments made on written request by the Applicant, after the Initial Payment, subject to the approval of the Discounting Company, in their sole discretion.

1.1.5. “Bond” means any Mortgage Bond passed or to be passed by the Applicant in favour of a mortgagee and to be registered over the Property as security for the repayment of a loan made by the mortgagee to the Applicant, which loan amount is specified in section 3.1 of the Application Form.

1.1.6. “Cession” means in the context of this Agreement, an out and out cession with no reversionary right in which the Applicant cedes, sells, assigns and transfers its legal rights, title and interest in order to request and advance payment of the proceeds of the sale of the Property and/or the proceeds of the loan for which the Bond is Registered and/or claim for estate agent’s commission to the Discounting Company;

1.1.7. “Conveyancing Attorneys” means the attorneys appointed by the Seller/Mortgagee and instructed to attend to the registration of the transfer of the Property and/or the registration of the Bond over the Property, as referred to in the Application Form;

1.1.8. “the Claim” means any claim the Applicant has against the Conveyancing Attorneys, or any other person/entity that may be in possession of the Proceeds, for the Proceeds in respect of the transfer and/or the Proceeds of the loan in respect of which the Bond is registered, and/or estate agent’s commission, and to whom such amount has been paid or will be paid, on or after date of registration;

1.1.9. “the Capital Amount” means all amounts paid to the Applicant by the Discounting Company which includes all Initial Payments and Additional Payments (if applicable), Discounting Fees and any costs incurred by the Discounting Company on behalf of the Applicant, relating to all Agreements between the Applicant and the Discounting Company;

1.1.10. “Debt” means the Capital Amount, with interest calculated thereon in terms of clause 5.11, should the Applicant be in breach of its obligations to the Discounting Company in terms of this Agreement;

1.1.11. “the Discounting Fee” means the fee payable by the Applicant to the Discounting Company as calculated at the percentage stated in section 4.4 of the Application Form, and as applied to the Initial Payment and Additional Payments (if applicable) on a daily basis by the Discounting Company, after taking into account any minimum term and/or minimum amount;

1.1.12. “the Discounting Company” means Granite Processing Services (Pty) Ltd t/a Granite Finance, a private company with limited liability, duly incorporated in accordance with the laws of the Republic of South Africa with Registration Number 2015/162983/07, and with its principal place of business situated at Unit 804, Touchstone House, 7 Bree Street, Cape Town;

1.1.13. “Due Date” means the date upon which payment of the Proceeds and/or Claim is due to be made to the Discounting Company in terms of the Agreement and/or Letter of Undertaking or such alternative date which may have been agreed to by the Discounting Company, if such agreement was in writing;

1.1.17.1. the Sale Price in terms of the sale of the Property after the deduction of bond, commission and other expenses; and/or
1.1.17.2. the net amount payable to the Applicant on registration of the Bond; and/or
1.1.17.3. the agent’s commission payable;

1.1.18. “Sale Price” means the sale price of the Property;

1.1.19. “Signature Date” means the date on which the Discounting Company signs acceptance of the Application Form and approves the application to advance finance;

1.1.20. “Standard Terms and Conditions” means these Terms and Conditions

1.1.21. “Registration Date” means the date on which the Property is transferred into the name of the Purchaser and transfer of ownership takes place and/or the date the Bond is registered in favour of a mortgagee;

1.1.22. “Undertaking Provider” means the firm, entity or person and/or the duly authorised signatory thereof who provides the Letter of Undertaking to the Discounting Company to make payment of the Proceeds into the Discounting Company’s nominated bank account upon fulfilment of the conditions contained therein.

1.2. INTERPRETATIONS:

1.2.1. The rules of interpretation of this Agreement shall apply to the Application Form as if set out in these Standard Terms and Conditions.

1.2.2. In addition to the definitions in clause 1.1, unless the context requires otherwise:

(a) the singular shall include the plural and vice versa; and
(b) a reference to any one gender, whether masculine, feminine or neuter, includes the other two.

1.2.3. All the headings and sub-headings in these Standard Terms and Conditions are for convenience only and are not to be taken into account for the purposes of interpreting it.

1.2.4. Except as expressly provided for in these Standard Terms and Conditions, no provision of these Standard Terms and Conditions constitutes a stipulation for the benefit of any person who is not a party to the application.

1.2.5. In accordance with the Agreement, the Discounting Company and the Applicant designate the Application Form as a Finance Document.

1.2.6. Where any number of days is prescribed, it shall consist of business days exclusive of Saturdays, Sundays and Public Holidays as recognised in the Republic of South Africa and shall be reckoned exclusively of the first day and inclusively of the last day.

1.2.7. Reference to months or years shall be construed as calendar months or years.

1.2.8. Where any amount is payable or any obligation is to be performed on a day which is not a business day, then such amount shall be payable or such obligation shall be performed on the first business day thereafter.

1.2.9. Where the day on or by which any act is required to be performed is not a business day, the Parties shall be deemed to have intended such act to be performed upon or by the first business day thereafter.

2. BRIDGING FINANCE

2.1. Subject to the fulfilment of the Standard Terms and Conditions of the Agreement, the Applicant agrees to cede, sell or transfer its right, title and interest to the Claim to the Discounting Company against payment as specified in section 4 of the Application form. For the avoidance of doubt, the aforementioned cession is an out and out cession;

2.2. The amount applied for shall be advanced to the Applicant as soon as reasonably possible after the Signature Date and approval of the application by the Discounting Company.

3. SALE AND CESSION

3.1. The Applicant hereby cedes, sells, assigns and transfers all of its right, title and interest in and to the Claim to the Discounting Company. For the avoidance of doubt, the aforementioned cession is an out and out cession;

3.2. The Discounting Company hereby accepts the cession, assignment, transfer and purchases all right, title and interest of the Applicant in and to the Claim.

3.3. Upon payment of the amount as specified in section 4 of the Application form, the cession, assignment, transfer and sale of the Claim is of immediate effect and regarded as legally valid without the Discounting Company having to take any further steps.

3.4. The Applicant is not entitled to cede its rights in terms of this Agreement.

3.5. The Discounting Company is entitled to notify any third party that the Applicant has ceded and transferred his right, title and interest in and to the Claim to the Discounting Company and that such right from date of cession vests with the Discounting Company.

3.6. The Discounting Company shall have the right, to cede or pledge this agreement, or the rights that it may acquire by virtue of the provisions hereof, for the purposes of providing security for finance or for any other reason whatsoever, in either case without the Applicant’s further consent.

4. CREDIT ASSESSMENT

4.1. The Applicant consents to the Discounting Company conducting any assessment (credit or otherwise) on him prior to acceptance of the Application and at any time thereafter.

4.2. If, after the Signature Date, circumstances arise or come to the attention of the Discounting Company which render the credit assessment of the Applicant unsatisfactory or unacceptable, the determination of which is in the sole discretion of the Discounting Company, then the Discounting Company will have no obligation to lend, advance or make any payment of any amounts of money to or on behalf of the Applicant in terms of this Agreement.

4.3. The Applicant will not have any claim of any nature against the Discounting Company for its failure to make payment of any amounts in terms of this Agreement.

5. GENERAL

5.1. If there is more than one Applicant, such persons shall be jointly and severally liable as co-principal debtors under this Agreement.

5.2. If the Applicant is a juristic person or trust, then the individual who signs the Agreement on behalf of the Applicant warrants authority and binds himself as co-principal debtor and stands surety for the Applicant for the due fulfilment of all obligations in terms of the Agreement.

5.3. No postponement, any extension of time or indulgence granted by the Discounting Company to the Applicant shall harm any of the rights of the Discounting Company or constitute a waiver by the Discounting Company of its rights in terms of the Agreement and the right to claim due and punctual payment hereunder.

5.4. Without prejudice to any other provision of this Agreement, any successor-in-title, including any executor, heir, liquidator, judicial manager, curator, or trustee, of either party shall be bound by this Agreement.

5.5. Each and every term and provision contained in this Agreement is divisible from the others and any term or provision of this agreement if found to be invalid, void, voidable or unenforceable for any reason whatsoever it shall be invalid, void, voidable or unenforceable only to the extent of that term or provision and shall not affect the validity and enforcement of the remaining terms and provisions of this Agreement which shall remain of full force and effect.

5.6. A written certificate purporting to have been signed by a manager or accountant for the time being of the Discounting Company, whose capacity or authority it will not be necessary to prove will upon the mere production thereof be binding on the Applicant and be prima facie proof of the contents of such certificate and of the fact that such amount and interest is due and payable in any legal proceedings against the Applicant, and will be valid as a liquid document against the Applicant in any competent court.

5.7. The Applicant consents to the jurisdiction of the Magistrates’ Court (District or Regional Division) in respect of any legal proceeding arising from or pursuant to this Agreement. Notwithstanding the consent, the Discounting Company may institute action in any High Court having jurisdiction.

5.8. In the event of the voluntary or compulsory provisional or final sequestration or liquidation or placing under business rescue of the Applicant or a compromise between the Applicant and its general body of creditors:

5.8.1. the Discounting Company may, without prejudice to any of its rights under this Agreement:

(a) prove a claim against the Applicant’s estate for the full amount of the Discounting Company’s claim against the Applicant; and
(b) recover from any surety or co-principal debtor the full amount of the Discounting Company’s claim against the Applicant, whether actual or contingent;

5.8.2. any dividend received by the Discounting Company from the Applicant’s estate shall be applied firstly to pay that part, if any, of the Applicant’s obligations to the Discounting Company which is not covered by this Agreement;

5.8.3. any failure of the Discounting Company to prove any claim against the Applicant’s estate shall not affect a surety’s or co-principal debtor’s liability to the Discounting Company in terms of this Agreement; and

5.8.4. Any compromise by the Discounting Company in Business Rescue proceedings shall not discharge a surety’s or co-principal debtor’s liability to the Discounting Company for the purposes of this Agreement.

5.9. The Applicant hereby expressly renounces the benefits of the non causa debiti, the errore calculi, the revision of accounts, no value recorded and, if there is more than one Applicant, the de doubus vel pluribus reis debendi or the ordinis seu excussionis et divisionis.

5.10. Should the Discounting Company incur legal costs in the collection of any amounts due to the Discounting Company, the Applicant shall pay such costs on the attorney-and-client scale, as well as collection costs, further interest and legal costs. Collection costs shall be calculated at 10% (ten percent) plus VAT of each and every payment made in reduction of the debt.

5.11. Any amounts due to the Discounting Company shall bear interest at the Prime Rate plus 25% (twenty five percent) on the Capital Amount from 30 (thirty) days after the breach of the Agreement, to date of final payment, compounded monthly in arrears on the outstanding balance due and shall be so calculated and capitalised on the last day of each and every month until the total amount due in terms of the Agreement shall have been paid.

6.1.1. The Applicant hereby appoints and irrevocably mandates the Conveyancing Attorneys as their agent to repay, to the Discounting Company:

6.1.1.1. the Capital Amount advanced by the Discounting Company to the Applicant; and/or
6.1.1.2. the Claim; and/or
6.1.1.3. the Debt; and/or
6.1.1.4. any other amount/s due to the Discounting Company by the Applicant in terms of any other Agreement entered into between the Applicant and the Discounting Company, whether such amount/s are due or not.

6.1.2. The payment of the amounts specified in 6.1.1.1 – 6.1.1.4 above to the Discounting Company shall be enforced and secured in the following matter:

6.1.2.1. The Applicant shall request that the Conveyancing Attorney provides the Discounting Company with a Letter of Undertaking, in a form to be determined by the Discounting Company, which provides that the Conveyancing Attorney shall make payment directly to the Discounting Company of the amounts specified in 6.1.1.1 – 6.1.1.3 on the Registration Date; and
6.1.2.2. The Applicant shall ensure that on or before the Registration Date the Proceeds are transferred directly into the trust account of the Conveyancing Attorneys to enable them to give effect to the Letter of Undertaking;
6.1.2.3. The Applicant hereby consents to any other funds, which may be held in trust by the Conveyancing Attorneys and due to the Applicant, to be utilised to set-off any shortfall between the Proceeds and Capital Amount due to the Discounting Company.
6.1.2.4. The Applicant irrevocably grants the Discounting Company, with power of substitution, full power and authority to recover in their name from any person/entity that is or shall be in possession of the amounts specified in 6.1.1.1 – 6.1.1.3 above; to institute action in their name against all or any party for the purpose of recovering the said amounts and to retain the proceeds recovered in the exercise of such powers on account of, and in reduction of, their indebtedness to the Discounting Company, including all costs and expenses of whatsoever nature together with interest at the maximum rate permitted by law, together with legal costs as between attorney and client incurred in the exercise of any such power.
6.1.2.5. In the event that the Conveyancing Attorney fails to make payment to the Discounting Company on the Registration Date and pays the Proceeds to the Applicant or to any other person, the Applicant shall immediately notify the Discounting Company of such failure and shall make payment of the Proceeds to the Discounting Company, which payment shall be made without set-off or deduction. Any additional costs, charges or interest that may be incurred due to the failure of the Conveyancing Attorneys will be solely for the account of the Applicant.
6.1.2.6. Should the Applicant be a party to more than one Agreement with the Discounting Company, the Applicant hereby consents to the Discounting Company utilizing the Proceeds that may be owing to the Discounting Company in respect of any other Agreements to offset the amount due in terms of this Agreement and the same shall apply conversely. The exercising of this right shall be at the sole and absolute discretion of the Discounting Company.

6.2. As it applies to all other Advances that may from time to time be given by the Discounting Company:

6.2.1. The Applicant hereby appoints and irrevocably mandates the Undertaking Provider as their agent to repay, to the Discounting Company:

6.2.1.1. the Capital Amount advanced by the Discounting Company to the Applicant; and/or
6.2.1.2. the Claim; and/or
6.2.1.3. the Debt; and/or
6.2.1.4. any other amount/s due to the Discounting Company by the Applicant in terms of any other Agreement entered into between the Applicant and the Discounting Company, whether such amount/s are due or not.

6.2.2. The payment of the amounts specified in 6.2.1.1 – 6.2.1.4 above to the Discounting Company shall be enforced and secured in the following matter:

6.2.2.1. The Applicant shall request that the Undertaking Provider provides the Discounting Company with a Letter of Undertaking, in a form to be determined by the Discounting Company, which provides that the Undertaking Provider shall make payment directly to the Discounting Company of the amounts specified in 6.2.1.1 – 6.2.1.3 on the Due Date; and
6.2.2.2. The Applicant shall ensure that on or before the Due Date the Undertaking Provider is in possession of the Proceeds enable them to give effect to the Letter of Undertaking;
6.2.2.3. The Applicant hereby consents to any other funds, which are or may in the future be due to the Applicant by the Undertaking Provider, being utilised to set-off any shortfall between the Proceeds and Capital Amount due to the Discounting Company.
6.2.2.4. The Applicant irrevocably grants the Discounting Company, with power of substitution, full power and authority to recover in their name from any person/entity that is or shall be in possession of the amounts specified in 6.2.1.1 – 6.2.1.3 above; to institute action in their name against all or any party for the purpose of recovering the said amounts and to retain the proceeds recovered in the exercise of such powers on account of, and in reduction of, their indebtedness to the Discounting Company, including all costs and expenses of whatsoever nature together with interest at the maximum rate permitted by law, together with legal costs as between attorney and client incurred in the exercise of any such power.
6.2.2.5. In the event that the Undertaking Provider fails to make payment to the Discounting Company on the Registration Date and pays the Proceeds to the Applicant or to any other person, the Applicant shall immediately notify the Discounting Company of such failure and shall make payment of the Proceeds to the Discounting Company, which payment shall be made without set-off or deduction. Any additional costs, charges or interest that may be incurred due to the failure of the Undertaking Provider will be solely for the account of the Applicant.
6.2.2.6. Should the Applicant be a party to more than one Agreement with the Discounting Company, the Applicant hereby consents to the Discounting Company offsetting the Proceeds of this Agreement against any and all Proceeds that may be owing to the Discounting Company in respect of any other Agreements and the same shall apply conversely. The exercising of this right shall be at the sole and absolute discretion of the Discounting Company.

7. RESOLUTIVE CONDITION

The sale and cession of the Claim is subject to the condition that the Registration Date or Due Date, as applies, must occur within 120 (ONE HUNDRED AND TWENTY) days of the advance of the Capital Amount, or a further period as otherwise agreed to in writing between the parties (“the Additional Period”), failing which the Discounting Company has the election to act in terms of clause 8.1 hereunder.

8. EFFECT OF RESOLUTIVE CONDITION

8.1. Notwithstanding anything to the contrary contained in this Agreement, should the condition as per clause 7 hereof not be complied with, the Discounting Company shall have the absolute discretion, irrespective of whether the Additional Period has expired or not, without harming its legal rights of cancellation, to:

8.1.1. cancel the Agreement forthwith and claim payment of all amounts due; or

8.1.2. agree to and further extend the period by which the resolutive condition may be fulfilled; or

8.1.3. waive the resolutive condition, provided that the waiver shall not be binding on the Discounting Company unless in writing and signed for and on behalf of the Discounting Company.

8.1.4. in the case of an advance to a Property Seller or a Mortgagor, pass a mortgage bond against the Property described in the Application Form.

8.2. Should the Discounting Company not exercise its election in terms of clause 8.1, it is presumed that the Discounting Company has extended the period set out in clause 7, reckoned from the expiry of the 120 (one hundred and twenty) days since the Capital Amount has been advanced until the Discounting Company makes the said decision in writing.

9. WARRANTIES AND UNDERTAKINGS

The Applicant warrants, undertakes and declares to the Discounting Company that:

9.1. the Applicant has disclosed all material information concerning the transaction, the Proceeds that will be available, deductions, prior claims and any current or impeding judgement debts against them;

9.2. the Applicant generally understands and appreciates the risks, costs and obligations under this Agreement;

9.3. the full Claim amount will be payable to the Discounting Company on the Registration Date or Due Date, as applies;

9.4. the Claim, or any part of it, has not been sold, transferred, ceded or pledged to anyone else;

9.5. the Applicant forfeits his rights to instruct the Conveyancing Attorneys or the Undertaking Provider, as applies, or any other person to pay the Claim/Proceeds anywhere other than to the Discounting Company;

9.6. the Applicant will not accept payment of the Claim/Proceeds either directly or indirectly to the exclusion, whether in whole or in part, of the Discounting Company;

9.7. on the Registration Date or Due Date, as applies, the Discounting Company will receive the Initial Amount advanced in terms of section 4.1 of the Application Form, plus all Additional Payments if any, plus the Discounting Fee, plus any other amounts due by the Applicant in terms of this Agreement; and

9.8. should on the Registration Date or Due Date, as applies, the Discounting Company not receive the full amount set out in 9.7, as due by the Applicant, from the Conveyancing Attorneys or Undertaking Provider, as applies, then the Applicant shall immediately pay to the Discounting Company the amount due or any shortfall of such amount.

10. EFFECT OF WARRANTIES

The Applicant acknowledges that the Discounting Company is entering into this Agreement in reliance on the abovementioned warranties, representations and undertakings and that if any of these warranties, representations and undertakings are or become to any extent inaccurate or breached, the Applicant will have committed fraud against the Discounting Company.

11. BREACH AND CANCELLATION

11.1. The Discounting Company may on occurrence of the events listed in clause 11.3, at any time before or after payment of the Capital Amount, cancel the agreement with 5 (five) days written notice to the Applicant, without prejudice to the Discounting Company or any other rights due to it in terms of these conditions or as set out by law.

11.2. Notice shall be given to the Applicant at his chosen domicilia citandi et executandi for service of all legal and ordinary notices in terms of this Agreement.

11.3. The Discounting Company may elect to cancel the Agreement in terms of clause 11.1 if it is of the opinion that any of the following facts or events may have occurred or might occur:

11.3.1. any warranty, representation or undertaking given herein is to a materially inaccurate or has been breached; or

11.3.2. the Discounting Company’s rights or ability to enforce its rights in terms of this Agreement will be prejudiced; or

11.3.3. any part of this Agreement is or becomes unenforceable in its current form; or

11.3.4. the Applicant is in breach of this Agreement in any way and has failed and or neglected to remedy such breach within 5 (five) days after receiving notice to remedy the breach; or

11.3.5. if the Registration process, the Applicant, the Agency or the Proceeds become compromised in any way, the determination of such compromise being at the sole discretion of the Discounting Company.

12. INDEMNITY

The Applicant hereby indemnifies and holds the Discounting Company harmless from all or any liability, damage, claims, costs and/or expenses incurred by the Applicant, or any third party in connection with the Applicant’s execution of its obligations in terms of this Agreement.

13. RESTITUTION

13.1. Upon cancellation, pursuant to clause 8.1.1 or clause 11 of the Agreement and without prejudice to any rights that the Discounting Company may have by law, the Debt due to the Discounting Company will become immediately due and payable by the Applicant to the Discounting Company.

13.2. The Agreement shall be of no further effect once all funds, together with interest thereon, advanced by the Discounting Company to the Applicant have been transferred into a nominated bank account of the Discounting Company.

13.3. The Applicant shall refund to the Discounting Company any amount paid by the Discounting Company to the Applicant or any other person resulting from the Application, together with interest thereon in terms of clause 5.11.

14. AGENCY

14.1. Notwithstanding anything to the contrary contained in this Agreement, the Applicant agrees that, neither the Conveyancing Attorneys nor their staff members shall be construed to be agents for the Discounting Company.

14.2. The Discounting Company shall not be bound by the representations, acts or omissions of any of the parties referred to above.

14.3. The Conveyancing Attorneys merely serve the function of introducing the Applicant to the Discounting Company, facilitating the registration of the transfer/bond and assisting in certain administrative functions, for which it may be entitled to receive an introduction or facilitation fee or commission from the Discounting Company.

15. WHOLE AGREEMENT

This Agreement constitutes the whole of the agreement between the parties relating to the subject matter thereof, and no amendment, alteration, addition, variation or consensual cancellation will be of any force or effect unless reduced to writing and signed by the parties.

16. WAIVER

No waiver of any of the terms and conditions of this Agreement will be binding for any purpose unless expressed in writing and signed by the party giving the same, and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either party in exercising any right, power or privilege will operate as a waiver, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

17. ASSUMPTIONS OF OBLIGATIONS AND OWNERSHIP

The Discounting Company does not assume any obligations of the Applicant under any sale agreement, loan agreement or otherwise in relation to the Property, all of which remain with the Applicant, irrespective of anything stated to the contrary in this Agreement.

18. NOTICES

18.1. The Applicant select as its domicilia citandi et executandi for the purpose of legal proceedings and for the purposes of giving or sending any notice provided for or necessary in terms of this agreement, the addresses set out in section 1 of the Application Form or such other address or e-mail address as may be substituted by notice given as required. Each of the parties will be entitled from time to time to vary its domicilium by written notice to the others.

18.2. Any notice addressed to a party at its physical or address will be sent by prepaid registered post, or delivered by hand; or alternatively sent to the e-mail address.

18.3. A notice will be presumed, unless the contrary is proved, to have been given:

18.3.1. if posted by prepaid registered post, 5 (five) days after the date of posting thereof;
18.3.2. if hand delivered during business hours on a business day, on the day of delivery;
18.3.3. if sent by e-mail, on the first business day following the date of sending of such e-mail.